Courting Climate Disaster: Trump’s Next Injustice

Ten years ago today, the United States Supreme Court issued its landmark 5-4 decision in Massachusetts v. Environmental Protection Agency, holding that the EPA had the authority to regulate greenhouse gas emissions under the Clean Air Act. Had Anthony Kennedy sided with the right-wing faction on the Court, the federal government would have been virtually powerless to combat human-caused climate change.

For all the malevolence of Donald Trump’s executive order to undermine years of efforts to reduce carbon pollution, it’s arguably minor compared to the climate horror that would be unleashed if Massachusetts v. Environmental Protection Agency were to be overturned; if a Supreme Court seat currently held by a non-reactionary Justice were to open up, and Trump successfully appointed an Antonin Scalia/Neil Gorsuch clone to fill the seat, that landmark 2007 ruling would be in Big Oil’s crosshairs.

The Kochs, Robert Mercer and other fossil-fuel fetishists dream of a Supreme Court decision that severely limits the federal government’s power to regulate greenhouse gas emissions. The millions of dollars in dark money being spent to promote Gorsuch’s nomination would be dwarfed by the amount spent on behalf of a nominee who held the key to effectively killing off federal climate action once and for all.

The Supreme Court–and the prospect of Trump being able to make more than one appointment to that court, to say nothing of his appointments to federal district and appellate courts–will be a critical factor in the 2018 Senate elections. There’s a reason why our country’s most malicious millionaires and billionaires will spare no expense to keep the Senate in right-wing hands: they know that if they lose control of the Senate, it will be harder to flood the federal courts with sympathetic jurists.

It’s obvious that right-wing activists led the charge to block Merrick Garland’s appointment to the High Court last year in part because he was likely to cast pro-climate votes:

Garland’s record should offer some optimism for environmentalists who are hopeful the Court will uphold the Clean Power Plan. According to SCOTUSblog, Garland has a history of taking the green side of regulatory disputes: “Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups.” In other words, Garland has often stood by the EPA when its rules were challenged by industry groups, and stood by environmentalists when they thought EPA actions hadn’t been strong enough.

Richard Lazarus, an environmental law scholar at Harvard University, said that Garland is highly respected in the environmental law community.

“No one would say Garland is a hardened environmentalist,” he said. Still, “we think we’ll get a straight shot from him. He doesn’t come with any inherent skepticism about the federal government overreaching [on environmental regulation]. In terms of looking for someone who would give a fair hearing [to the Clean Power Plan], he’s a big shift from Scalia.”

That was the last thing the right wanted.

The carbon crackpots will be fixated on retaining the Senate in 2018. Will progressives in general–and climate hawks in particular–be as fixated on prying the Senate loose? Had Democrats not lost control of the Senate in 2014–thanks in large part to Koch cash–Garland would likely be on the High Court today. Those who will attend the Climate Mobilization March in Washington on April 29 should emphasize that our planet will be finito if Trump can pack the High Court with more Thomases and Alitos.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.